Henderson v. McMurray
| Decision Date | 04 February 2020 |
| Docket Number | Civil Action Number 5:19-cv-00436-AKK |
| Citation | 611 F.Supp.3d 1287 |
| Parties | James HENDERSON, Carol Henderson, Plaintiffs, v. Mark MCMURRAY and City of Huntsville, Alabama, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Matthew James Clark, Montgomery, AL, Samuel Jacob McLure, The McLure Law Firm the Adoption Law Firm, Pike Road, AL, for Plaintiffs.
David J. Canupp, James Bradley Emmons, Lanier Ford Shaver & Payne PC, Huntsville, AL, for Defendants.
James and Carol Henderson bring this action against the City of Huntsville and Mark McMurray, the Chief of the City's Police Department, asserting claims under 42 U.S.C. § 1983 for violations of their First Amendment rights to freedom of speech and freedom of religious expression. Doc. 7. In particular, the Hendersons challenge the City's special events ordinance and a noise provision in permits the City issued to them, claiming that both restrict their ability to peacefully protest and communicate with employees, visitors, and patients in front of two abortion clinics. The court has for consideration the defendants' motions to dismiss. Docs. 9 and 11. The defendants argue that the ordinance and noise provision are reasonable and content neutral, and that the Hendersons fail to plausibly plead that the City or the Chief apply the provision and ordinance in favor of or against a particular viewpoint, or in an otherwise unconstitutional manner.
All voices generally deserve an opportunity to be heard and debated in the public square. But, "even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ " Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ). By the Hendersons' own admission, the City has never denied them a permit to engage in their speech. See doc. 7. And, the restrictions they challenge serve the City's "strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks." Madsen v. Women's Health Center, Inc. , 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). Critically, the defendants " ‘place[ ] no restrictions on either a particular viewpoint or any subject matter that may be discussed.’ " Solantic, LLC v. City of Neptune Beach , 410 F.3d 1250, 1259 (11th Cir. 2005) (quoting Hill v. Colorado , 530 U.S. 703, 723, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) ) (alteration in original omitted). While the Hendersons would prefer that the City do away with these restrictions, "the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ " Emp't Div., Dept. of Human Res. of Oregon v. Smith , 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (quotation omitted) (superseded by statute on other grounds). Therefore, in the absence of any pleaded facts showing that the defendants selectively enforce the ordinance and provision at issue to target their speech or religiously motivated conduct, the court finds that the Hendersons have failed to plausibly plead that the defendants violated their First Amendment rights by applying the content-neutral ordinance and noise provision in an unconstitutional manner. The motions to dismiss are due to be granted.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Mere " ‘labels and conclusions’ " or " ‘a formulaic recitation of the elements of a cause of action’ " are insufficient. Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. When evaluating a motion brought under Rule 12(b)(6), the court accepts "the allegations in the complaint as true and construe[s] them in the light most favorable to the plaintiff."
Hunt v. Aimco Props., L.P. , 814 F.3d 1213, 1221 (11th Cir. 2016). However, "[t]o survive a motion to dismiss, a complaint must ... ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, the complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id. See also Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
The Hendersons are a married couple, pro-life advocates, and self-identified abortion counselors who have maintained a presence outside of two abortion clinics in Huntsville, Alabama for several years. Doc. 7 at 2. According to the Hendersons, "they typically stand on the public sidewalk near the clinic[s] and audibly express their views, pray, and counsel to the employees, visitors, and patients who pass by." Id. The Hendersons allege that their typical activity is a "minor event" that, according to a City ordinance, does not require a special-events permit. Id.
In addition to the Hendersons, pro-choice protesters also congregate outside the clinics and seek to counter the Hendersons' speech by shouting loudly and ringing cowbells. Id. at 4. Allegedly, the defendants "fail to protect [the Hendersons] from this thuggery" even though the pro-choice protesters' behavior purportedly violates a City ordinance prohibiting any person from unreasonably interfering with an organized event. Id. The Hendersons also take issue with an alleged City policy allowing "a group to obtain a permit for traditionally protected speech on the public sidewalk and thereby exclude other groups from the same sidewalk," contending that the pro-choice protesters employ that policy to exclude them from the sidewalk outside the clinics. Id.
To counter the noise from the pro-choice protesters, the Hendersons employ "raised voices and sometimes amplification to make their message discernible." Id. at 5. And, because the use of "amplification arguably makes [their] activity a ‘sound event’ requiring a permit under the ... Huntsville Code," the Hendersons obtained a renewable, six-month special events permit. Id. The permit allows them to use sound amplification when necessary in accordance with certain terms, and the Hendersons have renewed this permit every six months for several years. Id. The permit initially limited the Hendersons' use of amplified sound to 62 decibels. Id. at 6. But, in 2017, the City added a provision stating that "[t]he amplified sound produced by a participant in the event shall not be plainly audible inside adjacent or nearby buildings." Id. The provision defines plainly audible as "amplified sound [that] can be clearly heard inside an adjacent or nearby building by a person using his normal hearing faculties, provided that person's hearing is not enhanced by any mechanical device, such as a microphone or hearing aid," and clarifies that "the particular words or phrase being produced need not be determined." Id. at 6-7. The Hendersons allege that Chief McMurray added the new permit provisions in his capacity as police chief. Id. at 10.
The Hendersons claim that the new language conflicts with the terms of the City's noise ordinance, contradicts the stated purpose of the events code, and lacks the specificity contemplated elsewhere in the City code. Id. at 7-9. Allegedly, the new provision fails "to provide for any objective means by which the speaker can assess his compliance with the ordinance, but place[s] the merely subjective means only in the hands of hearers who are overtly hostile the Hendersons' message." Id. at 7. Consequently, they characterize the permit requirements as unconstitutionally vague, overbroad, arbitrary, and capricious. Id.
The Hendersons made multiple, unsuccessful efforts to persuade the City to remove the new provision from the permit. Id. at 9. Not satisfied with the City's response, when they filed a new permit application in September 2018, the Hendersons altered the application to add a caveat that they signed the application "subject to the US and Alabama Constitution and advice of counsel." Id. In turn, counsel for the City informed the Hendersons that the City would not grant the application with their added caveat. Id. Feeling that they had "no choice but to either accede to the new provision or face prosecution for protected expression," the Henderson's signed off on the new provisional language. Id. Subsequently, the Hendersons filed this lawsuit to challenge the defendants' alleged unconstitutional restriction of their right to free speech and to the free exercise of their religion. Id. at 10-11.
To continue reading
Request your trial